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THE FIERBERG NATIONAL LAW GROUP, PLLC
1 DOUGLAS E. FIERBERG (admitted pro hac vice)
dfierberg@tfnlgroup.com
2 JONATHON N. FAZZOLA (admitted pro hac vice)
jfazzola@tfnlgroup.com
3 161 East Front Street, Suite 200
Traverse City, MI 49684
4 Telephone: (231) 933-0180
Fax: (231) 252-8100
5
SAWYER & LABAR LLP
6 IVO LABAR, State Bar No. 203492
labar@sawyerlabar.com
7 1700 Montgomery Street, Suite 108
San Francisco, CA 94111
8 Telephone: (415) 262-3820
9 Attorneys for Plaintiffs
DAPHNE BELETSIS
10 YVONNE RAINEY
11
12 SUPERIOR COURT OF CALIFORNIA
13 COUNTY OF SANTA CRUZ
DAPHNE BELETSIS, individually, and as Case No. 19CV03287
14 Administrator of the ESTATE OF (Assigned to Hon. Paul Marigonda,
ALEXANDER BELETSIS, and Dept. 10)
15
YVONNE RAINEY, surviving parent of PLAINTIFFS’ SEPARATE
16 ALEXANDER BELETSIS, deceased STATEMENT OF MATERIAL
DISPUTED FACTS AND ADDITIONAL
17 Plaintiffs, DISPUTED AND UNDISPUTED
vs. MATERIAL FACTS IN OPPOSITION
18 TO DEFENDANT THETA CHI
THETA CHI FRATERNITY, INC., et al., FRATERNITY, INC.’S MOTION FOR
19 SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
20 Defendants. ADJUDICATION
21 Hearing Date: December 9, 2022
Time: 8:30 a.m.
22 Dept.: 10
23 Complaint Filed: October 31, 2019
FAC Filed: February 5, 2020
24 Trial Date: June 20, 2022
25
26
27
28
PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED
AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY,
INC’S MSJ
1
Plaintiffs Daphne Beletsis, individually and as Administrator of the Estate of Alexander
2
Beletsis (“Alex”), and Yvonne Rainey, as a surviving parent of Alex, pursuant to CCP 473c(b)(3)
3
and Rule 3.1350(e)(2) of the California Rules of Court, respectfully submit this Separate
4
Statement of Material Disputed Facts and Additional Disputed and Undisputed Material Facts in
5
Opposition to Defendant Theta Chi Fraternity, Inc. (“Theta Chi”) Motion for Summary Judgment
6
or, in the Alternative, Summary Adjudication.
7
8 ISSUE 1: THETA CHI IS ENTITLED TO SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY ADJUDICATION, ON PLAINTIFFS DAPHNE BELETSIS
9 AND YVONNE RAINEY’S FIRST, SECOND, THIRD, FOURTH AND FIFTH CAUSES OF
10 ACTION FOR NEGLIGENCE BECAUSE THETA CHI DID NOT OWE A DUTY OF
CARE TO PLAINTIFFS.
11
12 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
13 EVIDENCE
1. In Fall 2017, Alexander Beletsis (“Mr. Undisputed.
14 Beletsis”) pursued an opportunity to
become a member of Defendant Theta
15
Iota Chapter of Theta Chi Fraternity,
16 Inc. (“the UC Santa Cruz Chapter”),
Theta Chi’s local undergraduate
17 chapter at the University of California
at Santa Cruz (“UC Santa Cruz”), and
18 he successfully completed the pledge
process and became an initiated
19
member.
20
Evidence: Plaintiffs’ First Amended
21 Complaint, at ¶¶ 7 and 81, Exhibit A to Index
of Exhibits and Evidence in Support of
22 Defendant Theta Chi Fraternity, Inc.’s Motion
23 for Summary Judgment or, In the Alternative,
Summary Adjudication, filed concurrently
24 herewith (“Index”).
2. On June 2, 2018, Mr. Beletsis was Undisputed that Alex was an initiated member
25 already an initiated member of the UC of the Chapter on June 2, 2018.
Santa Cruz Chapter and he was not
26 being “hazed” that day. Plaintiffs object to the purported factual
27 statement that Alex “was not being ‘hazed’
Evidence: that day,” on the grounds that (1) the
28 Deposition of Leon Burns 288:15-21, Exhibit statement is an improper legal conclusion, not
PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED
AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S
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2 EVIDENCE
B to Index. a statement of fact (Evid. Code § 310), and (2)
3 Deposition of Mathieu Turk 73:15-20, that legal conclusion conflicts with the Court’s
Exhibit C to Index. October 14, 2020 Order Denying Defendant
4 Deposition of Miguel Saldivar 179:3-7, Theta Chi Fraternity Inc.’s Motion to Strike
5 Exhibit D to Index. Portions of the First Amended Complaint. See
Deposition of Sophia Beletsis 126:4-11, October 14, 2021 Order Denying Theta Chi
6 Exhibit E to Index. Motion (Ex. 1 to Plaintiffs’ Index of
Deposition of Jordan Takayama 24:6-12, Evidence). In the Order, the Court ruled that
7 27:22-24, Exhibit G to Index. the definitions of hazing from the University’s
Deposition of Rafael Garcia, Jr. 262:24-263:1, Anti-Hazing Policy and the Standards for
8 Exhibit I to Index. Student Conduct for the University of
9 California System were “not restricted to
initiation or preinitiation into a campus
10 organization.” Id. It is disputed that Alex
could not have been ‘hazed’ on June 2, 2018,
11 within the meaning of that term, as defined in
the University’s Anti-Hazing Policy and the
12 Standards for Student Conduct for the
13 University of California System.
14 The Standards for Student Conduct for the
University of California System define hazing,
15 in pertinent part, as:
16
any method of initiation or pre-initiation
17 into a student organization or student
body, whether or not the organization or
18 body is officially recognized by an
educational institution, which is likely
19 to cause serious bodily injury to any
former, current, or prospective student
20
of any school, community college,
21 college, university or other educational
institution in this state (Penal Code
22 245.6), and in addition, any act likely to
cause physical harm, personal
23 degradation or disgrace resulting in
physical or mental harm, to any former,
24
current, or prospective student of any
25 school, community college, college,
university or other educational
26 institution ….
27
28 2
PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED
AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S
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See Cal. Code Regs. Tit. 5, § 41301(b)(8) (Ex.
3 2 to Plaintiffs’ Index of Evidence). Those
standards further provide that “[n]either the
4 express or implied consent of the victim of
5 hazing, nor the lack of active participation in a
particular hazing incident is a defense. Apathy
6 or acquiescence in the presence of hazing is
not a neutral act, and is also a violation of this
7 section.” Id.
8 UCSC’s Anti-Hazing Policy provides:
9
Our campus definition is broader than
10 applicable criminal laws. Campus
hazing policies embody the
11 University’s concerns for protecting
the safety and welfare of students;
12 these policies prohibit any method of
13 initiation or preinitiation into a campus
organization or other activity engaged
14 in by the organization or its members
that humiliates or degrades or risks
15 emotional and/or physical harm,
regardless of the person’s willingness
16
to participate.
17
UCSC’s Anti-Hazing Policy (Ex. 3 to
18 Plaintiffs’ Index of Exhibits); Rojas Dep.
50:25-53:24 (Ex. 4 to Plaintiffs’ Index of
19 Exhibits).
20
3. The “Crossover Ceremony” for new Undisputed.
21 Spring 2018 pledges as referenced in
the First Amended Complaint occurred
22 at the Market House.
23 Evidence:
24 Deposition of Leon Burns 33:22-34:15; 58:20,
61:14-16, Exhibit B to Index.
25 Deposition of Mathieu Turk 51:24-52:8,
52:17-22, Exhibit C to Index.
26 Deposition of Miguel Saldivar 39:20-25, 44:1-
7, Exhibit D to Index.
27 4. The student house in Santa Cruz where Undisputed.
28 3
PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED
AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S
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2 EVIDENCE
the “Crossover Ceremony” occurred
3 was not owned, leased, managed, or
possessed by Theta Chi on June 2,
4 2018, nor at any other time.
5
Evidence:
6 Declaration of Michael Mayer in Support of
Defendant Theta Chi Fraternity, Inc.’s Motion
7 for Summary Judgment or, In the Alternative,
Summary Adjudication, filed concurrently
8 herewith (“Declaration of Michael Mayer”), at
9 ¶ 12.
5. After the “Crossover Ceremony” Undisputed that Alex traveled with Leon
10 ended, Mr. Beletsis traveled with his Burns and Miguel Saldivar to the property at
friend Leon Burns and Miguel 511 Broadway, Santa Cruz after the Chapter’s
11 Saldivar to 511 Broadway, Santa Cruz, Crossover Ceremony on June 2, 2018, for a
California (“the Broadway House”) to crossover party sponsored by the Chapter.
12
attend a party.
13 Disputed that Mr. Burns and Mr. Saldivar
Evidence: were the only people who traveled with Alex
14 Deposition of Leon Burns 72:12-23, Exhibit to 511 Broadway. See Burns Dep. 72:18-23
B to Index. (testifying that John Leitch also traveled to
15 Deposition of Miguel Saldivar 50:24-25, 51:3- 511 Broadway with Alex, Mr. Burns, and Mr.
13, Exhibit C to Index. Saldivar) (Ex. B to Defendant Theta Chi’s
16
Index of Evidence).
17
6. The student house in Santa Cruz where Undisputed.
18 Mr. Beletsis was injured (“the
Broadway House”) was not owned
19 leased, managed or possessed by Theta
20 Chi at the time of Mr. Beletsis’ injury
on June 2, 2018, nor at any other time.
21 Rather, the Broadway House was
owned by defendant Quinn
22 McLaughlin.
23 Evidence:
24 Declaration of Michael Mayer, at ¶ 12.
7. No representative of Theta Chi Disputed. Theta Chi exercised extensive
25 participated in the planning or control over the Chapter and its members,
organization of the events leading up rendering the members agents of, and the
26 to Mr. Beletsis’ accident, and no Chapter both an agent and alter ego of, Theta
representative of Theta Chi was Chi. (PSMF at III-NNN, PPP-QQQ, TTTTT.)
27
present for the “Crossover Ceremony”
28 4
PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED
AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S
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or the party at the Broadway House on
3 June 2, 2018.
4 Evidence:
5 Declaration of Michael Mayer, at ¶ 15.
8. Mr. Beletsis liked to drink alcohol and Undisputed that Alex drank alcohol and used
6 do cocaine, and he had done both cocaine before June 2, 2018. The remainder
several times prior to June 2, 2018. of this purported statement of fact is disputed,
7 is not supported by undisputed, admissible
Evidence: evidence, and misstates the evidence.
8 Deposition of Mathieu Turk 183:5-13, The excerpts of Sophia Beletsis’ deposition
9 Exhibit C to Index. transcript cited by Defendant Theta Chi do not
Deposition of Sophia Beletsis 152:14-20, establish that Alex “liked to drink” as Theta
10 112:15-22, 127:5-12, Exhibit E to Index. Chi contends.
11 Objections:
Plaintiffs object to the excerpt of testimony of
12
Matthieu Turk offered in support of these
13 purported statements of fact. See Plaintiffs’
Written Objections to Evidence, Evidentiary
14 Objection No. 1, filed concurrently herewith.
9. Mr. Beletsis voluntarily drank at both Undisputed that Alex drank at both the
15 the “Crossover Ceremony” at the Crossover Ceremony at 626 Market Street and
Market House and at the party at the at the crossover ceremony celebration event at
16
Broadway House. Mr. Beletsis liked 511 Broadway Street, Santa Cruz, California.
17 to drink alcohol and was not pressured Th remainder of this purported statement of
into drinking or doing cocaine on June fact is disputed, is not supported by
18 2, 2018. undisputed, admissible evidence, and/or
misstates the evidence.
19 Evidence: None of the excerpts from Sophia Beletsis’
20 Deposition of Sophia Beletsis 21:23-22:6, deposition transcript cited by Theta Chi
39:10-14, 45:2-8, 88:5-22, 112:15-22, 131:6- support a finding that Alex “like to drink
21 132:4, 151:16-21, Exhibit E to Index. alcohol,” and Ms. Beletsis has no personal
Deposition of Mathieu Turk 183:9-13, knowledge regarding whether Alex was
22 Exhibit C to Index, pressured into drinking or doing cocaine on
Deposition of Miguel Saldivar 177:4-6, June 2, 2018, because she was not present at
23 262:17-23, Exhibit D to Index. the Chapter’s event. See Sophia Beletsis Dep.
24 Deposition of Jordan Takayama 25:13-17, 21:23-22:6, 39:10-14, 45:2-8, 88:5-22,
26:12-14, 26:21-23, Exhibit G to Index. 112:15-22, 131:6-132:4, 151:16-21 (Ex. E to
25 Deposition of Rafael Garcia, Jr. 262:17-23, Theta Chi’s Index of Evidence).
Exhibit I to Index. In addition, Zachary Davis declared, under
26 penalty of perjury, that as a part of the Big
Brother Night ritual, older fraternity members
27 also had full bottles of the family drink, and
28 5
PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED
AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S
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they were expected to drink that night. See
3 Davis Dec. ¶ 7 (Ex. 5 to Plaintiffs’ Index of
Evidence).
4 Further, it is undisputed that when Alex
5 consumed cocaine on June 2, 2018, he was
already so intoxicated from alcohol that he
6 was “swaying side to side.” (PSMF at GG.)
Plaintiffs object to the excerpts of testimony
7 from Matthieu Turk and Miguel Saldivar,
offered in support of these purported
8 statements of fact. See Plaintiffs’ Written
9 Objections to Evidence, Evidentiary Objection
Nos. 1 and 2, filed concurrently herewith.
10 10. Mr. Beletsis had a cocaine dealer who Disputed. This purported statement of fact is
was not a member of the UC Santa not material, is not supported by undisputed,
11 Cruz Chapter and Mr. Beletsis was admissible evidence, misstates the evidence.
known to have a fake ID that he used Although Turk testified that a woman named
12
to purchase alcohol underage. “Em” “provided people with cocaine,” he
13 admitted that he “never saw her do
Evidence: interactions,” did not testify about any specific
14 Deposition of Leon Burns 87:4-23, Exhibit B instance of “Em” providing anyone with
to Index. cocaine which he had personal knowledge and
15 Deposition of Mathieu Turk 186:15-17, did not testify that Alex purchased the cocaine
Exhibit C to Index. he used on June 2, 2018 from a woman named
16
Deposition of Sophia Beletsis 98:6-7, 127:17- “Em.” See Turk Dep. 186:13-25 (Ex. C to
17 128:2, Exhibit E to Index. Defendant Theta Chi’s Index of Evidence).
Further, Burns did not testify that Alex (or
18 anyone else), in fact, purchased cocaine from
the purported individual who went by “E” on
19 June 2, 2018. See Burns Dep. 86:25-87:23
(Ex. B to Defendant Theta Chi’s Index of
20
Evidence). Burns testified that Alex did not
21 call “E” on June 2, 2018, and Mr. Burns
declined to answer, on Fifth Amendment
22 grounds, whether he called “E.” See Burns
Dep. 88:19-25 (Ex. 6 to Plaintiffs’ Index of
23 Evidence). Burns testified that he did not hear
24 Alex have a conversation with “E” on June 2,
2018. See id. 93:10-14. Burns declined to
25 answer whether “E” had cocaine when he
purportedly came to the party on June 2, 2018,
26 whether he had any conversations with “E”
after “E” purportedly came to the party, and
27 whether he observed “E” with cocaine on June
28 6
PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED
AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S
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MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
2 EVIDENCE
2, 2018. See id. 89:6-11, 93:4-9, 93:15-19.
3 Further, notes take by UCSC Assistant Dean
Sanchez regarding his interview with Burns
4 following Alex’s death, which were produced
5 by UCSC after Burns’ deposition, directly
contradict Burns’ deposition testimony.
6 Those notes show that Burns told Sanchez
that:
7 • “cocaine lines were going around in
the party”;
8
• Burns “and Alex went into [Derek
9 King’s] room where [Derek], Micah,
and Micah’s girlfriend were snorting
10 lines of cocaine”
• Burns “then bought a half gram of
11 cocaine” from King.
12 • Burns and “Alex immediately line[d]
up the cocaine and snort it there in
13 [King’s] room.”
• “After Alex snorted the cocaine
14 bought from [King], Alex’s demeanor
changed immediately.”
15
See Sanchez Notes re: Member Interviews
16 (Ex. 7 to Plaintiffs’ Index of Evidence).
Finally, Sophia Beletsis did not testify that
17 Alex used a fake ID to purchase alcohol, a
purported fact that, in any event, is not
18 material, since there is no evidence that Alex
19 purchased any of the alcohol he consumed on
June 2, 2018. See Sophia Beletsis Dep. 98:6-7
20 (Ex. E to Defendant Theta Chi’s Index of
Evidence). And her testimony that Alex
21 “mentioned to her that Em sold cocaine,” id.
at 127:20-22, does not establish that Em, in
22 fact, sold cocaine to Alex, a purported fact,
23 which even if established or undisputed,
would not be material because there is no
24 evidence that Em sold cocaine to Alex (or
anyone else at the party) on June 2, 2018.
25 11. Mr. Beletsis purchased cocaine and Undisputed that Alex ingested cocaine on the
ingested the cocaine on the evening of evening of June 2, 2018, or that thereafter
26 June 2, 2018. Shortly afterwards, Mr. Burns suggested Alex go to the bathroom,
27 Beletsis appeared frustrated and his which he did.
friend Leon Burns suggested that Mr. Disputed that Alex purchased the cocaine.
28 7
PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED
AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S
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Beletsis go to the bathroom and he did. Although Turk testified that a woman named
3 “Em” “provided people with cocaine,” he
Evidence: admitted that he “never saw her do
4 Deposition of Mathieu Turk 186:15-21, interactions,” did not testify about any specific
5 Exhibit C to Index. instance of “Em” providing anyone with
Deposition of Leon Burns 86:22-87:15, 99:3- cocaine which he had personal knowledge,
6 10, 100:5-13, Exhibit B to Index. and did not testify that Alex purchased the
cocaine he used on June 2, 2018 from a
7 woman named “Em.” See Turk Dep. 186:13-
25 (Ex. C to Defendant Theta Chi’s Index of
8 Evidence).
9
Further, Burns did not testify that Alex (or
10 anyone else), in fact, purchased cocaine from
the purported individual who went by “E” on
11 June 2, 2018. See Burns Dep. 86:25-87:23
(Ex. B to Defendant Theta Chi’s Index of
12 Evidence). Burns testified that Alex did not
13 call “E” on June 2, 2018, and Mr. Burns
declined to answer, on Fifth Amendment
14 grounds, whether he called “E.” See Burns
Dep. 88:19-25 (Ex. 6 to Plaintiffs’ Index of
15 Evidence). Burns testified that he did not hear
Alex have a conversation with “E” on June 2,
16
2018. See id. 93:10-14. Burns declined to
17 answer whether “E” had cocaine when he
purportedly came to the party on June 2, 2018,
18 whether he had any conversations with “E”
after “E” purportedly came to the party, and
19 whether he observed “E” with cocaine on June
2, 2018. See id. 89:6-11, 93:4-9, 93:15-19.
20
Further, notes take by UCSC Assistant Dean
21 Sanchez regarding his interview with Burns
following Alex’s death, which were produced
22 by UCSC after Burns’ deposition, directly
contradict Burns’ deposition testimony.
23 Those notes show that Burns told Sanchez
that:
24
• “cocaine lines were going around in
25 the party”;
• Burns “and Alex went into [Derek
26 King’s] room where [Derek], Micah,
and Micah’s girlfriend were snorting
27
lines of cocaine”
28 8
PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED
AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S
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• Burns “then bought a half gram of
3 cocaine” from King.
• Burns and “Alex immediately line[d]
4
up the cocaine and snort it there in
5 [King’s] room.”
• “After Alex snorted the cocaine
6 bought from [King], Alex’s demeanor
changed immediately.”
7 See Sanchez Notes re: Member Interviews
8 (Ex. 7 to Plaintiffs’ Index of Evidence).
Preview
THE FIERBERG NATIONAL LAW GROUP, PLLC 1 DOUGLAS E. FIERBERG (admitted pro hac vice) dfierberg@tfnlgroup.com 2 JONATHON N. FAZZOLA (admitted pro hac vice) jfazzola@tfnlgroup.com 3 161 East Front Street, Suite 200 Traverse City, MI 49684 4 Telephone: (231) 933-0180 Fax: (231) 252-8100 5 SAWYER & LABAR LLP 6 IVO LABAR, State Bar No. 203492 labar@sawyerlabar.com 7 1700 Montgomery Street, Suite 108 San Francisco, CA 94111 8 Telephone: (415) 262-3820 9 Attorneys for Plaintiffs DAPHNE BELETSIS 10 YVONNE RAINEY 11 12 SUPERIOR COURT OF CALIFORNIA 13 COUNTY OF SANTA CRUZ DAPHNE BELETSIS, individually, and as Case No. 19CV03287 14 Administrator of the ESTATE OF (Assigned to Hon. Paul Marigonda, ALEXANDER BELETSIS, and Dept. 10) 15 YVONNE RAINEY, surviving parent of PLAINTIFFS’ SEPARATE 16 ALEXANDER BELETSIS, deceased STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL 17 Plaintiffs, DISPUTED AND UNDISPUTED vs. MATERIAL FACTS IN OPPOSITION 18 TO DEFENDANT THETA CHI THETA CHI FRATERNITY, INC., et al., FRATERNITY, INC.’S MOTION FOR 19 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY 20 Defendants. ADJUDICATION 21 Hearing Date: December 9, 2022 Time: 8:30 a.m. 22 Dept.: 10 23 Complaint Filed: October 31, 2019 FAC Filed: February 5, 2020 24 Trial Date: June 20, 2022 25 26 27 28 PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S MSJ 1 Plaintiffs Daphne Beletsis, individually and as Administrator of the Estate of Alexander 2 Beletsis (“Alex”), and Yvonne Rainey, as a surviving parent of Alex, pursuant to CCP 473c(b)(3) 3 and Rule 3.1350(e)(2) of the California Rules of Court, respectfully submit this Separate 4 Statement of Material Disputed Facts and Additional Disputed and Undisputed Material Facts in 5 Opposition to Defendant Theta Chi Fraternity, Inc. (“Theta Chi”) Motion for Summary Judgment 6 or, in the Alternative, Summary Adjudication. 7 8 ISSUE 1: THETA CHI IS ENTITLED TO SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION, ON PLAINTIFFS DAPHNE BELETSIS 9 AND YVONNE RAINEY’S FIRST, SECOND, THIRD, FOURTH AND FIFTH CAUSES OF 10 ACTION FOR NEGLIGENCE BECAUSE THETA CHI DID NOT OWE A DUTY OF CARE TO PLAINTIFFS. 11 12 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 13 EVIDENCE 1. In Fall 2017, Alexander Beletsis (“Mr. Undisputed. 14 Beletsis”) pursued an opportunity to become a member of Defendant Theta 15 Iota Chapter of Theta Chi Fraternity, 16 Inc. (“the UC Santa Cruz Chapter”), Theta Chi’s local undergraduate 17 chapter at the University of California at Santa Cruz (“UC Santa Cruz”), and 18 he successfully completed the pledge process and became an initiated 19 member. 20 Evidence: Plaintiffs’ First Amended 21 Complaint, at ¶¶ 7 and 81, Exhibit A to Index of Exhibits and Evidence in Support of 22 Defendant Theta Chi Fraternity, Inc.’s Motion 23 for Summary Judgment or, In the Alternative, Summary Adjudication, filed concurrently 24 herewith (“Index”). 2. On June 2, 2018, Mr. Beletsis was Undisputed that Alex was an initiated member 25 already an initiated member of the UC of the Chapter on June 2, 2018. Santa Cruz Chapter and he was not 26 being “hazed” that day. Plaintiffs object to the purported factual 27 statement that Alex “was not being ‘hazed’ Evidence: that day,” on the grounds that (1) the 28 Deposition of Leon Burns 288:15-21, Exhibit statement is an improper legal conclusion, not PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S MSJ MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND 1 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 2 EVIDENCE B to Index. a statement of fact (Evid. Code § 310), and (2) 3 Deposition of Mathieu Turk 73:15-20, that legal conclusion conflicts with the Court’s Exhibit C to Index. October 14, 2020 Order Denying Defendant 4 Deposition of Miguel Saldivar 179:3-7, Theta Chi Fraternity Inc.’s Motion to Strike 5 Exhibit D to Index. Portions of the First Amended Complaint. See Deposition of Sophia Beletsis 126:4-11, October 14, 2021 Order Denying Theta Chi 6 Exhibit E to Index. Motion (Ex. 1 to Plaintiffs’ Index of Deposition of Jordan Takayama 24:6-12, Evidence). In the Order, the Court ruled that 7 27:22-24, Exhibit G to Index. the definitions of hazing from the University’s Deposition of Rafael Garcia, Jr. 262:24-263:1, Anti-Hazing Policy and the Standards for 8 Exhibit I to Index. Student Conduct for the University of 9 California System were “not restricted to initiation or preinitiation into a campus 10 organization.” Id. It is disputed that Alex could not have been ‘hazed’ on June 2, 2018, 11 within the meaning of that term, as defined in the University’s Anti-Hazing Policy and the 12 Standards for Student Conduct for the 13 University of California System. 14 The Standards for Student Conduct for the University of California System define hazing, 15 in pertinent part, as: 16 any method of initiation or pre-initiation 17 into a student organization or student body, whether or not the organization or 18 body is officially recognized by an educational institution, which is likely 19 to cause serious bodily injury to any former, current, or prospective student 20 of any school, community college, 21 college, university or other educational institution in this state (Penal Code 22 245.6), and in addition, any act likely to cause physical harm, personal 23 degradation or disgrace resulting in physical or mental harm, to any former, 24 current, or prospective student of any 25 school, community college, college, university or other educational 26 institution …. 27 28 2 PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S MSJ MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND 1 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 2 EVIDENCE See Cal. Code Regs. Tit. 5, § 41301(b)(8) (Ex. 3 2 to Plaintiffs’ Index of Evidence). Those standards further provide that “[n]either the 4 express or implied consent of the victim of 5 hazing, nor the lack of active participation in a particular hazing incident is a defense. Apathy 6 or acquiescence in the presence of hazing is not a neutral act, and is also a violation of this 7 section.” Id. 8 UCSC’s Anti-Hazing Policy provides: 9 Our campus definition is broader than 10 applicable criminal laws. Campus hazing policies embody the 11 University’s concerns for protecting the safety and welfare of students; 12 these policies prohibit any method of 13 initiation or preinitiation into a campus organization or other activity engaged 14 in by the organization or its members that humiliates or degrades or risks 15 emotional and/or physical harm, regardless of the person’s willingness 16 to participate. 17 UCSC’s Anti-Hazing Policy (Ex. 3 to 18 Plaintiffs’ Index of Exhibits); Rojas Dep. 50:25-53:24 (Ex. 4 to Plaintiffs’ Index of 19 Exhibits). 20 3. The “Crossover Ceremony” for new Undisputed. 21 Spring 2018 pledges as referenced in the First Amended Complaint occurred 22 at the Market House. 23 Evidence: 24 Deposition of Leon Burns 33:22-34:15; 58:20, 61:14-16, Exhibit B to Index. 25 Deposition of Mathieu Turk 51:24-52:8, 52:17-22, Exhibit C to Index. 26 Deposition of Miguel Saldivar 39:20-25, 44:1- 7, Exhibit D to Index. 27 4. The student house in Santa Cruz where Undisputed. 28 3 PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S MSJ MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND 1 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 2 EVIDENCE the “Crossover Ceremony” occurred 3 was not owned, leased, managed, or possessed by Theta Chi on June 2, 4 2018, nor at any other time. 5 Evidence: 6 Declaration of Michael Mayer in Support of Defendant Theta Chi Fraternity, Inc.’s Motion 7 for Summary Judgment or, In the Alternative, Summary Adjudication, filed concurrently 8 herewith (“Declaration of Michael Mayer”), at 9 ¶ 12. 5. After the “Crossover Ceremony” Undisputed that Alex traveled with Leon 10 ended, Mr. Beletsis traveled with his Burns and Miguel Saldivar to the property at friend Leon Burns and Miguel 511 Broadway, Santa Cruz after the Chapter’s 11 Saldivar to 511 Broadway, Santa Cruz, Crossover Ceremony on June 2, 2018, for a California (“the Broadway House”) to crossover party sponsored by the Chapter. 12 attend a party. 13 Disputed that Mr. Burns and Mr. Saldivar Evidence: were the only people who traveled with Alex 14 Deposition of Leon Burns 72:12-23, Exhibit to 511 Broadway. See Burns Dep. 72:18-23 B to Index. (testifying that John Leitch also traveled to 15 Deposition of Miguel Saldivar 50:24-25, 51:3- 511 Broadway with Alex, Mr. Burns, and Mr. 13, Exhibit C to Index. Saldivar) (Ex. B to Defendant Theta Chi’s 16 Index of Evidence). 17 6. The student house in Santa Cruz where Undisputed. 18 Mr. Beletsis was injured (“the Broadway House”) was not owned 19 leased, managed or possessed by Theta 20 Chi at the time of Mr. Beletsis’ injury on June 2, 2018, nor at any other time. 21 Rather, the Broadway House was owned by defendant Quinn 22 McLaughlin. 23 Evidence: 24 Declaration of Michael Mayer, at ¶ 12. 7. No representative of Theta Chi Disputed. Theta Chi exercised extensive 25 participated in the planning or control over the Chapter and its members, organization of the events leading up rendering the members agents of, and the 26 to Mr. Beletsis’ accident, and no Chapter both an agent and alter ego of, Theta representative of Theta Chi was Chi. (PSMF at III-NNN, PPP-QQQ, TTTTT.) 27 present for the “Crossover Ceremony” 28 4 PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S MSJ MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND 1 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 2 EVIDENCE or the party at the Broadway House on 3 June 2, 2018. 4 Evidence: 5 Declaration of Michael Mayer, at ¶ 15. 8. Mr. Beletsis liked to drink alcohol and Undisputed that Alex drank alcohol and used 6 do cocaine, and he had done both cocaine before June 2, 2018. The remainder several times prior to June 2, 2018. of this purported statement of fact is disputed, 7 is not supported by undisputed, admissible Evidence: evidence, and misstates the evidence. 8 Deposition of Mathieu Turk 183:5-13, The excerpts of Sophia Beletsis’ deposition 9 Exhibit C to Index. transcript cited by Defendant Theta Chi do not Deposition of Sophia Beletsis 152:14-20, establish that Alex “liked to drink” as Theta 10 112:15-22, 127:5-12, Exhibit E to Index. Chi contends. 11 Objections: Plaintiffs object to the excerpt of testimony of 12 Matthieu Turk offered in support of these 13 purported statements of fact. See Plaintiffs’ Written Objections to Evidence, Evidentiary 14 Objection No. 1, filed concurrently herewith. 9. Mr. Beletsis voluntarily drank at both Undisputed that Alex drank at both the 15 the “Crossover Ceremony” at the Crossover Ceremony at 626 Market Street and Market House and at the party at the at the crossover ceremony celebration event at 16 Broadway House. Mr. Beletsis liked 511 Broadway Street, Santa Cruz, California. 17 to drink alcohol and was not pressured Th remainder of this purported statement of into drinking or doing cocaine on June fact is disputed, is not supported by 18 2, 2018. undisputed, admissible evidence, and/or misstates the evidence. 19 Evidence: None of the excerpts from Sophia Beletsis’ 20 Deposition of Sophia Beletsis 21:23-22:6, deposition transcript cited by Theta Chi 39:10-14, 45:2-8, 88:5-22, 112:15-22, 131:6- support a finding that Alex “like to drink 21 132:4, 151:16-21, Exhibit E to Index. alcohol,” and Ms. Beletsis has no personal Deposition of Mathieu Turk 183:9-13, knowledge regarding whether Alex was 22 Exhibit C to Index, pressured into drinking or doing cocaine on Deposition of Miguel Saldivar 177:4-6, June 2, 2018, because she was not present at 23 262:17-23, Exhibit D to Index. the Chapter’s event. See Sophia Beletsis Dep. 24 Deposition of Jordan Takayama 25:13-17, 21:23-22:6, 39:10-14, 45:2-8, 88:5-22, 26:12-14, 26:21-23, Exhibit G to Index. 112:15-22, 131:6-132:4, 151:16-21 (Ex. E to 25 Deposition of Rafael Garcia, Jr. 262:17-23, Theta Chi’s Index of Evidence). Exhibit I to Index. In addition, Zachary Davis declared, under 26 penalty of perjury, that as a part of the Big Brother Night ritual, older fraternity members 27 also had full bottles of the family drink, and 28 5 PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S MSJ MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND 1 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 2 EVIDENCE they were expected to drink that night. See 3 Davis Dec. ¶ 7 (Ex. 5 to Plaintiffs’ Index of Evidence). 4 Further, it is undisputed that when Alex 5 consumed cocaine on June 2, 2018, he was already so intoxicated from alcohol that he 6 was “swaying side to side.” (PSMF at GG.) Plaintiffs object to the excerpts of testimony 7 from Matthieu Turk and Miguel Saldivar, offered in support of these purported 8 statements of fact. See Plaintiffs’ Written 9 Objections to Evidence, Evidentiary Objection Nos. 1 and 2, filed concurrently herewith. 10 10. Mr. Beletsis had a cocaine dealer who Disputed. This purported statement of fact is was not a member of the UC Santa not material, is not supported by undisputed, 11 Cruz Chapter and Mr. Beletsis was admissible evidence, misstates the evidence. known to have a fake ID that he used Although Turk testified that a woman named 12 to purchase alcohol underage. “Em” “provided people with cocaine,” he 13 admitted that he “never saw her do Evidence: interactions,” did not testify about any specific 14 Deposition of Leon Burns 87:4-23, Exhibit B instance of “Em” providing anyone with to Index. cocaine which he had personal knowledge and 15 Deposition of Mathieu Turk 186:15-17, did not testify that Alex purchased the cocaine Exhibit C to Index. he used on June 2, 2018 from a woman named 16 Deposition of Sophia Beletsis 98:6-7, 127:17- “Em.” See Turk Dep. 186:13-25 (Ex. C to 17 128:2, Exhibit E to Index. Defendant Theta Chi’s Index of Evidence). Further, Burns did not testify that Alex (or 18 anyone else), in fact, purchased cocaine from the purported individual who went by “E” on 19 June 2, 2018. See Burns Dep. 86:25-87:23 (Ex. B to Defendant Theta Chi’s Index of 20 Evidence). Burns testified that Alex did not 21 call “E” on June 2, 2018, and Mr. Burns declined to answer, on Fifth Amendment 22 grounds, whether he called “E.” See Burns Dep. 88:19-25 (Ex. 6 to Plaintiffs’ Index of 23 Evidence). Burns testified that he did not hear 24 Alex have a conversation with “E” on June 2, 2018. See id. 93:10-14. Burns declined to 25 answer whether “E” had cocaine when he purportedly came to the party on June 2, 2018, 26 whether he had any conversations with “E” after “E” purportedly came to the party, and 27 whether he observed “E” with cocaine on June 28 6 PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S MSJ MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND 1 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 2 EVIDENCE 2, 2018. See id. 89:6-11, 93:4-9, 93:15-19. 3 Further, notes take by UCSC Assistant Dean Sanchez regarding his interview with Burns 4 following Alex’s death, which were produced 5 by UCSC after Burns’ deposition, directly contradict Burns’ deposition testimony. 6 Those notes show that Burns told Sanchez that: 7 • “cocaine lines were going around in the party”; 8 • Burns “and Alex went into [Derek 9 King’s] room where [Derek], Micah, and Micah’s girlfriend were snorting 10 lines of cocaine” • Burns “then bought a half gram of 11 cocaine” from King. 12 • Burns and “Alex immediately line[d] up the cocaine and snort it there in 13 [King’s] room.” • “After Alex snorted the cocaine 14 bought from [King], Alex’s demeanor changed immediately.” 15 See Sanchez Notes re: Member Interviews 16 (Ex. 7 to Plaintiffs’ Index of Evidence). Finally, Sophia Beletsis did not testify that 17 Alex used a fake ID to purchase alcohol, a purported fact that, in any event, is not 18 material, since there is no evidence that Alex 19 purchased any of the alcohol he consumed on June 2, 2018. See Sophia Beletsis Dep. 98:6-7 20 (Ex. E to Defendant Theta Chi’s Index of Evidence). And her testimony that Alex 21 “mentioned to her that Em sold cocaine,” id. at 127:20-22, does not establish that Em, in 22 fact, sold cocaine to Alex, a purported fact, 23 which even if established or undisputed, would not be material because there is no 24 evidence that Em sold cocaine to Alex (or anyone else at the party) on June 2, 2018. 25 11. Mr. Beletsis purchased cocaine and Undisputed that Alex ingested cocaine on the ingested the cocaine on the evening of evening of June 2, 2018, or that thereafter 26 June 2, 2018. Shortly afterwards, Mr. Burns suggested Alex go to the bathroom, 27 Beletsis appeared frustrated and his which he did. friend Leon Burns suggested that Mr. Disputed that Alex purchased the cocaine. 28 7 PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S MSJ MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND 1 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 2 EVIDENCE Beletsis go to the bathroom and he did. Although Turk testified that a woman named 3 “Em” “provided people with cocaine,” he Evidence: admitted that he “never saw her do 4 Deposition of Mathieu Turk 186:15-21, interactions,” did not testify about any specific 5 Exhibit C to Index. instance of “Em” providing anyone with Deposition of Leon Burns 86:22-87:15, 99:3- cocaine which he had personal knowledge, 6 10, 100:5-13, Exhibit B to Index. and did not testify that Alex purchased the cocaine he used on June 2, 2018 from a 7 woman named “Em.” See Turk Dep. 186:13- 25 (Ex. C to Defendant Theta Chi’s Index of 8 Evidence). 9 Further, Burns did not testify that Alex (or 10 anyone else), in fact, purchased cocaine from the purported individual who went by “E” on 11 June 2, 2018. See Burns Dep. 86:25-87:23 (Ex. B to Defendant Theta Chi’s Index of 12 Evidence). Burns testified that Alex did not 13 call “E” on June 2, 2018, and Mr. Burns declined to answer, on Fifth Amendment 14 grounds, whether he called “E.” See Burns Dep. 88:19-25 (Ex. 6 to Plaintiffs’ Index of 15 Evidence). Burns testified that he did not hear Alex have a conversation with “E” on June 2, 16 2018. See id. 93:10-14. Burns declined to 17 answer whether “E” had cocaine when he purportedly came to the party on June 2, 2018, 18 whether he had any conversations with “E” after “E” purportedly came to the party, and 19 whether he observed “E” with cocaine on June 2, 2018. See id. 89:6-11, 93:4-9, 93:15-19. 20 Further, notes take by UCSC Assistant Dean 21 Sanchez regarding his interview with Burns following Alex’s death, which were produced 22 by UCSC after Burns’ deposition, directly contradict Burns’ deposition testimony. 23 Those notes show that Burns told Sanchez that: 24 • “cocaine lines were going around in 25 the party”; • Burns “and Alex went into [Derek 26 King’s] room where [Derek], Micah, and Micah’s girlfriend were snorting 27 lines of cocaine” 28 8 PLAINTIFFS’ SEPARATE STATEMENT OF MATERIAL DISPUTED FACTS AND ADDITIONAL DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT THETA CHI FRATERNITY, INC’S MSJ MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND 1 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 2 EVIDENCE • Burns “then bought a half gram of 3 cocaine” from King. • Burns and “Alex immediately line[d] 4 up the cocaine and snort it there in 5 [King’s] room.” • “After Alex snorted the cocaine 6 bought from [King], Alex’s demeanor changed immediately.” 7 See Sanchez Notes re: Member Interviews 8 (Ex. 7 to Plaintiffs’ Index of Evidence).